martinez told police he fought in self-defense. but aubry was more seriously hurt. taken by ambulance to be treated for broken ribs and a possible head injury. >> the fact is, if you shove someone, that doesn't give them license to pummel you back. and that ultimately be what gabriel aubry argues to a judge. >> reporter: aubry is currently the only one facing charges for misdemeanor investigation of battery, after martinez declared a citizen's arrest. but legal analysts say that doesn't hold the same weight, as an arrest initiated by police. >> it may be a he said/he said. while halle berry was a witness, she's not going to be viewed as unbiased. >> reporter: the case could have serious consequences. just weeks ago, a judge refused berry's request to move to france. a request she made because there's tougher laws against paparazzi there. aubry has argued that the move would unfairly separate him from his daughter. but now -- >> california law is very clear. if a parent engages in an act of domestic violence or some sort of altercation, that can be used against them